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2d 292
Appellants appeal from separate judgments of the United States District Court
for the District of Kansas denying injunctive and declaratory relief from rectal
searches conducted by officials of the United States Penitentiary at
Leavenworth, Kansas. The proceedings in both cases were in forma pauperis.
Because the basic facts and issues are identical the appeals were consolidated
for argument before this court.
The authority to undertake rectal searches stems from a grant of power to the
Bureau of Prisons, 18 U.S.C. Secs. 4041, 4042, to manage and regulate all
federal penal and correctional institutions. The Director of the Bureau of
Prisons is empowered to formulate policies and procedures for commitment,
control and treatment of inmates in federal institutions. 28 C.F.R. Secs. 0.95,
0.96, 0.97. Prison officials at local institutions are also authorized to
promulgate procedures consistent with their peculiar needs and problems.
Pursuant to this authority the Bureau of Prisons and officials at the United
States Penitentiary, Leavenworth, Kansas established procedures concerning
the discharge of inmates to the United States Marshal's Office.
Policy Statement No. 7300.53 of the Bureau of Prisons requires a United States
Marshal to exercise every precaution when transferring prisoners, including
conducting thorough searches of the person. Due to specific problems which
have arisen with the transfer of prisoners in the District of Kansas, prison
officials at Leavenworth developed local procedures concerning contraband and
searches before releasing prisoners to the United States Marshal's Office. This
directive states:
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Effective
immediately, dress-out procedures for all inmates to be released to the
custody of the U. S. Marshals or U. S. Deputy Marshals will be conducted in the
basement of the Administration Building. The Receiving and Discharge Officer will
carry the dress-out clothing and escort the inmate to the release room at the time the
Marshal arrives to assume custody. The inmate will be given a "strip shake-down"
removing all institutional clothing and a rectal examination given by the M.T.A., and
dressed in release clothing which will be thoroughly shaken down in the presence of
the Marshal or his Deputy. (Director of the United States Penitentiary, Leavenworth,
Kansas, October 18, 1971.)
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Appellants' assertions must be examined in light of the basic rule that control
and management of federal penal institutions lies within the sound discretion of
the responsible administrative agency. Judicial relief will only be granted upon
a showing that prison officials have exercised their discretionary powers in such
a manner as to constitute clear abuse or caprice. Perez v. Turner, 10 Cir., 462
F.2d 1056, 1057; Evans v. Moseley, 10 Cir., 455 F.2d 1084, 1086. The district
court, based upon the pleadings and after taking judicial notice of facts
contained in other files and records of the court and facts subject to judicial
knowledge, summarily denied relief. We affirm, rejecting appellants'
contentions that the searches are a basic violation of their right to privacy
unless special cause is shown in justification and that, in any event, the searches
must be conducted by medical doctors and in complete privacy.
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